AP review: Gorsuch backed minimum standard for disabled kids

February 17, 2017

Written by JEFF DONN , AP National Writer

Supreme Court nominee Neil Gorsuch has embraced a bare-bones standard of education for disabled children, but he has often upheld other civil rights complaints against schools, an Associated Press review of his legal record shows.

His rulings on education in his decade on the Denver-based 10th U.S. Circuit Court of Appeals reflect a judge who closely follows judicial precedent, including when it means ruling against handicapped children and their parents.

Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, announced Thursday the panel will begin confirmation hearings for Gorsuch on March 20. Republicans hope to complete the confirmation process by April, and Gorsuch has been making traditional courtesy calls to senators for the past two weeks, in part to woo some Democrats whose support he needs.

In a 2008 case, Gorsuch wrote an opinion that reversed a lower court ruling, which would have forced a Colorado school to pay an alternative school to educate an autistic boy identified only as Luke. Gorsuch said the alternative program might indeed be better for the boy, but he had been making some progress in the public school — and that was good enough under the federal Individuals with Disabilities Education Act.

"We sympathize with Luke's family and do not question the enormous burdens they face. Our job, however, is to apply the law as Congress has written it and the Supreme Court has interpreted it," wrote Gorsuch.

The U.S. Supreme Court recently heard a similar Colorado-based challenge to the schools in a case known as Endrew F. v. Douglas County School District. "We believe the 10th Circuit has gotten it wrong and that the law demands more in terms of the level of education for kids," said William Koski, a Stanford University law professor who runs a clinic that helps disadvantaged children in disputes with their schools. He co-wrote a brief for the recent case, urging a higher standard of education for disabled children. The high court has yet to announce a decision.

Gorsuch, who was nominated by President Trump to replace the late Antonin Scalia, has been hailed by conservatives for adhering to the philosophy of staying within the established boundaries of the law and legal precedent. However, while not making new law, Gorsuch has often upheld civil rights challenges of a kind dear to liberals.

Education critics of the Trump administration have focused largely on Trump's pick for education secretary, Betsy DeVos. She stumbled during her Senate confirmation when she appeared to say that state control might take precedence over the federal Individuals with Disabilities Education Act. She later recast her views to acknowledge the fundamental federal role in enforcement, which is the basis for such cases to be heard in federal courtrooms like Gorsuch's.

In other civil rights cases, Gorsuch joined in a 2007 ruling that restored a complaint by two women who said they were sexually assaulted by football players and recruits during a party at the University of Colorado Boulder. The lower court had said it wasn't the university's fault, but Gorsuch's panel disagreed, blaming the assaults on poor campus supervision. The women's claims were brought under Title IX, the federal anti-discrimination law known for expanding female participation in sports programs.

The case was later settled out of court, with the school paying $2.85 million to the women. No sexual assault charges were filed, but four players eventually pleaded guilty to giving alcohol to minors at the party. The Ivy League-educated Gorsuch taught law at the campus, but not until after his court ruling.

In a 2016 dissent from fellow judges, Gorsuch sided with a 13-year-old student in Albuquerque, New Mexico, who was handcuffed and arrested for persistent fake burping and other horseplay in class. However, the student had not been violent, and Gorsuch said the arrest was unwarranted. In his dissent, he wrote that "arresting a now compliant class clown for burping was going a step too far."

In a 2012 case, Gorsuch joined a ruling that let parents in a wealthy Kansas school district challenge a state law meant to equalize school spending around the state with a tax cap. Reversing the lower court, Gorsuch and his colleagues said the parents could mount their challenge as a possible abuse to their constitutional rights of equal protection and due process. In 2015, however, the same appeals court — with Gorsuch absent — upheld the state cap.